Law Enforcement and the Law

Top 10 legal issues in law enforcement in 2007

Here, to recap the year, P1 legal contributor Ken Wallentine presents his view on the top 10 legal issues in law enforcement in 2007, in general order of significance:

1. Taser issues: Liability for use and mistaken shooting of firearm when Taser was intended.

Beaver had been smoking crack cocaine and marijuana and drinking during a two-day binge. An officer responding to a burglary call saw Beaver running from the scene. The officer recognized him from a prior encounter and called to him by name, ordering him to stop. Beaver continued to run away and the officer shot him with a Taser. Beaver went down. The court summarized a number of 20-20 hindsight facts:

The officer ordered him to turn on his stomach and extend his arms. Instead, Beaver attempted to get up and the officer activated the Taser a second time. Again, Beaver did not comply with orders to turn onto his stomach and the officer activated the Taser a third time. A backup officer arrived at that point. She gave Beaver a conflicting order, telling him to get on his back. A citizen later testified that he clearly heard Beaver say, “I can’t.” There was no physical evidence that Beaver couldn’t comply. The officer fired the Taser a fourth time and Beaver rolled onto his stomach, with his arms held under him. The officer applied the Taser to Beaver a fifth time at which point he extended his arms above his head. The officer kicked Beaver’s hands to the side and Beaver was handcuffed. Beaver sued, claiming that the officers used excessive force to arrest him. [Read Lessons learned in Beaver v. Federal Way]

Mistaken shooting: An officer saw Henry driving and followed him to his home to serve an arrest warrant for child support arrears. When the officer approach Henry and told him to get out of the truck, he fled. The officer, intending to draw and fire a Taser, mistakenly drew his Glock handgun and shot Henry as he ran. Henry sued. Though the officer claimed that he had not seized Henry because he did not intend to shoot him, the court disagreed. However, the court of appeals ruled that the officer might be entitled to qualified immunity if the officer reasonably believed that using the Taser was proper. The court of appeals remanded the case to the trial court to consider the nature of the Taser training to prevent incidents like this from happening, whether the officer acted in accordance with that training, whether the officer would have discovered that he was holding a handgun rather than a Taser if, as he apparently had been trained to do, he had attempted to flip the thumb safety device on what he thought was the Taser, and whether his prior encounters with Henry impacted his actions. Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007).

2. Probation and parole search authority expanding across the nation

On the heels of the United States Supreme Court’s decisions in Sampson v. California and United States v. Knights, some states are considering statutes that would allow suspicionless searches of parolees. Others are considering their states’ parole release contracts. In the Sampson decision, the Court ruled held that officers may conduct a warrantless, suspicionless search pursuant to a search condition contained in the supervision agreement that authorized any peace officer to conduct a search at any time for any (or no) reason.

Herndon was on probation for sexual exploitation of a minor (though Herndon had been imprisoned and released, the court deemed his status as “probation release”). One of the probation terms included a prohibition on Internet use without his probation officer’s permission. His probation officer learned that Herndon was using the Internet without permission. The probation officer went to Herndon’s home and found a laptop computer under Herndon’s pillow. A pre-search scan showed pornographic images, though it was not clear that the persons in the images were children. The probation officer found an unconnected external hard drive in Herndon’s bedroom, connected it to the laptop computer and found obvious child pornography. Officers ultimately seized over 3,000 images and several hundred videos of child pornography.

Herndon claimed that the probation search provision that allowed the officer to search his computer did not extend to unconnected peripheral hardware. In United States v. Knights, the Supreme Court ruled that a search of a probationer''s property must be tested for reasonableness, weighing individual privacy with legitimate governmental concerns: “When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer''s significantly diminished privacy interests is reasonable.” The court of appeals ruled that Herndon’s computer and the external hard drive cannot function independently of one another. The court stated that the term "computer" is "commonly understood to include the collection of components involved in a computer''s operation." Thus, Herndon had a substantially reduced expectation of privacy in the external drive. United States v. Herndon, 501 F.3d 683 (6th Cir. 2007).

The National Association of Criminal Defense Lawyers (NACDL) launched a broad brush lawsuit in 2007 challenging eyewitness identification procedures in the matter of NACDL v. Chicago Police Department et al. The NACDL claims that departments use faulty line-up procedures in criminal investigations. The Innocence Project (www.innocenceproject.org) claims that “eyewitness misidentification is the single greatest cause of wrongful convictions nationwide.” Illinois, Maryland, North Carolina, Virginia, Wisconsin, and West Virginia have already passed statutes mandating certain eyewitness identification safeguards. Nearly twenty other states are considering legislation that may impact line-up procedures. Some states’ police organizations are ahead of the curve, drafting best practice statements and promoting internal quality control. Watch for this issue to reach the forefront in 2008.

4. Use of thermal imaging in drug detection held to a standard lower than probable cause

A CI reported that he had seen a basement marijuana cultivation operation in Kattaria’s home two years prior (pretty stale info). An investigator found that Kattaria had two prior convictions for marijuana crimes and that Kattaria’s recent home power consumption was well over twice that of the highest consumption of his immediate neighbors, and 300 times high than one of his neighbors. With that information, the investigator obtained a warrant for fly-over thermal imaging. In Kyllo v United States, 533 U.S. 27 (2001), the Supreme Court held that warrantless thermal imaging violated the Fourth Amendment. However, the Court did not establish the threshold standard for obtaining a warrant.

The Court of Appeals determined that the appropriate standard for obtaining a warrant for non-intrusive thermal imaging of a residence is the Terry standard of reasonable suspicion, and not probable cause. The court balanced “the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives.” The court noted that thermal imaging was not only non-intrusive, but served to help confirm suspicions of illegal activity before a more intrusive search of the home. United States v. Kattaria, 503 F.3d 703 (8th Cir. 2007).

5. Security search authority expanding under the 4th Amendment

The Ninth Circuit Court of Appeals recently reaffirmed its ruling that a passenger entering a secure zone at an airport may not leave the secure zone as an alternative to a required security search. Xiphos previously reported that the decision in United States v. Aukai, 440 F.3d 1168 (9th Cir. 2006), had been scheduled for reconsideration by the full panel of the court (known as an “en banc” hearing). The court moved away from a thirty-year old precedent that based security searches on consent by the traveler. Following a case decided by the Third Circuit, in United States v. Hartwell, 436 F.3d 174 (3rd Cir. 2006), the court ruled that suspicionless security screenings are constitutional under the Fourth Amendment''s special needs doctrine. Under the special needs doctrine, a search or seizure is allowed if it supports services special governmental needs, beyond ordinary law enforcement need, that outweigh an individual''s privacy expectations, and the circumstances of the search (such as a transportation security zone search requiring expediency) make it impractical to require a warrant or to impose a requirement of individual reasonable suspicion. United States v. Aukai, 497 F.3d 955 (9th Cir. 2007).

Many professional sports arenas and civic centers ban firearms. Two recent court actions support the venue officials’ right to continue the practice. The National Football League enacted rules requiring above-the-waist pat down searches to deter terrorists from bringing explosives into NFL games. Johnson sued to stop the Tampa Bay Buccaneers from enforcing the rules. He was a season ticket holder who attended 3 games where he verbally protested the frisk, but complied with the rule. The court found that Johnson consented to the searches when he attempted to enter the stadium after being given notice of the search requirement. Johnson cited a case in which the same court had banned wide-scale frisks of protesters gathered near a military bases based on the protesters’ right to gather to exercise First Amendment rights. Attending a football game, while an all-American activity, did not carry the same constitutional protection. Johnston v. Tampa Sports Authority, 490 F.3d 820 (11th Cir. 2007).

Stark sued the Seattle Seahawks over the identical search policy. The court reached the same result, though through a different analysis. The court found that there was no Fourth Amendment violation because there was no government action. Though the stadium benefited from state financing, the government did not have a meaningful role in drafting or enforcing the search policy. Stark v. Seattle Seahawks, 2007 WL 1821017 (W.D. Wash. 2007).

6. Talking nice, using the "language of consent" supports findings of no detention (and hence, no need for reasonable suspicion to detain)

Parkin was involved in a traffic crash. An officer asked Parkin to sit in his patrol car to complete the crash report. Parkin sat in the car for approximately 10 minutes, 8 minutes of which were passed with questions about the crash details. The officer asked Parkin whether he had been smoking marijuana or had been around others smoking weed. The officer then asked Parkin to consent to a vehicle search. Parkin agreed. The officer subsequently arrested Parkin for possession of cocaine.

Parkin argued that he should have received Miranda warnings prior to speaking with the officer, alleging that he was in custody during the time of questioning. Utah courts (like most others) generally consider several factors in evaluating custody: (1) the site of interrogation; (2) whether the investigation focused on the accused; (3) whether the objective indicia of arrest were present; and (4) the length and form of interrogation. Though Parkin was in a police cruiser, this factor did not suggest custody because he was seated there for convenience in completing the crash investigation. He was not commanded to be seated in the car. The investigation focused on the crash, rather than on Parkin as a drug suspect. Thus, the focus of the investigation did not suggest custody. The third factor, indicia of arrest, also worked against Parkin. He was not handcuffed or otherwise restrained. Although the cruiser’s emergency lights were on, they served to warn of the crash, not to intimidate or restrain Parkin. Finally, the questioning about the marijuana was brief and not accusatory. The officer “talked nice, thought mean.”

Parkin also claimed that his consent to search the car was involuntary. The court easily rejected that claim. The officer “did not use intimidating words or threaten Parkin in any way, and he used no force. Further, he specifically made a request, rather than a demand, to search Parkin''s car, and the record shows that Parkin fully cooperated with the officer's request. There is no evidence that the officer deceived or tricked Parkin into consenting to the search.” Talking nice when asking consent helped to establish the voluntariness of Parkin’s consent. State v. Parkin, 2007 WL 1649893 (Utah App. 2007).

7. Georgia v. Randolph -- consent issues

Courts have wrestled with the parameters of the Supreme Court’s 2006 decision in Georgia v. Randolph. That was the case where the wife gave officers permission to enter the home and take her husband’s cocaine stash and the husband refused. The Court ruled that a physically present party with coequal possession rights could exclude officers from a home, even in the face of another party’s consent to enter. As illustrated in the following case, courts are confining the Georgia v. Randolph ruling to a very narrow interpretation.

An anonymous caller notified police that McKerrell was the subject of several arrest warrants, and that he was working in his front yard. Officers confirmed that McKerrell had 3 arrest warrants for a total of 8 charges. They went to his home to arrest him. McKerrell ran inside the home and barricaded himself. Within a few minutes, his wife and small child came outside. After some negotiation, McKerrell surrendered peaceably. Officers quickly transported him to jail. An officer spoke with Mrs. McKerrell and learned that she had full run of the home. She did all the laundry and opened every drawer and cupboard in the house. She consented to a search of the home. The search produced 4 illegally possessed guns.

McKerrell claimed that the search was invalid. He asserted that the act of barricading himself into the home was an implied or express denial of his consent to search. He argued that the rule of Georgia v. Randolph, 547 U.S. 103 (2006), should be interpreted as his implied or express denial of consent to trump his wife’s consent. McKerrell also argued that he would have further objected to the search if the police had not promptly taken him from the scene, preventing him from discussing the search with his wife or with officers. The Court rejected both claims. United States v. McKerrell, 491 F.3d 1221, (10th Cir. 2007).

8. Passenger seizure during traffic stop (Brendlin v. California)

An officer stopped a car for a traffic violation. Brendlin was a passenger. The officer thought that he knew Brendlin and questioned him about his name. It turned out that Brendlin lied, but the officer figured out Brendlin''s identity and discovered a parole hole. The officer searched the car and found methamphetamine clan lab evidence in the car and in Brendlin''s pocket. At his trial for meth possession, Brendlin objected to the evidence on the ground that it was the illegal fruit of an illegal traffic detention. The core issue is that he claimed that he was "seized" when the car in which he was a passenger was stopped.

The California Supreme Court held (in a 4-3 vote) that "the passenger, whose progress is momentarily stopped as a practical matter, is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he or she was the subject of the peace officer’s investigation or show of authority." As a result, Brendlin did not have standing (meaning no legal right to whine about the stop) to object to the evidence that was seized. (Read: Is a passenger "seized" during a traffic stop? The Supreme Court answers).

9. Courts'' expansion of authority to ask questions during traffics stop, based on Muehler v. Mena

An officer saw Valenzuela cross lane divider lines and stopped him. After taking Valenzuela’s insurance card and registration (Valenzuela did not have a driver''s license with him), but before beginning to write a citation or check for warrants and valid license, the officer asked Valenzuela to step out to the rear of the car and speak with him. The officer asked politely, asking whether Valenzuela would be willing to step out. At the rear of the car, the officer asked whether he or the other three occupants had any weapons or other illegal items in the car. Valenzuela said, “Not that I know of.” The officer asked whether “it would be O.K.” to search for weapons and illegal items. Valenzuela answered by saying that there was a shotgun in the back seat. The officer placed Valenzuela in a police car, and the officer and a back-up officer placed handcuffs on the other three occupants. The officer could see a sawed-off shotgun through the car window.

Valenzuela claimed that the officer unconstitutionally prolonged the traffic detention by briefly delaying his traffic investigation to ask weapons and illegal item questions unrelated to the basis for the stop. The Court of Appeals disagreed, relying on the Supreme Court case of Muehler v. Mena, 544 U.S. 93 (2005). Though Muehler v. Mena was not a traffic detention case, many courts have followed its logic to redefine the scope of proper questions at a traffic stop or other investigative detention. The Supreme Court ruled that the scope of the detention, not the topic of questioning, was the critical issue for courts to consider. The Supreme Court held that questioning about matters unrelated to the purpose of the initial detention does not “constitute a discrete Fourth Amendment event.”

Prior to Muehler v. Mena, the Tenth Circuit Court of Appeals agreed with most other courts and held that questioning unrelated to the purpose of a traffic stop or to officer safety violate the Fourth Amendment, unless there is reasonable suspicion to justify the questions. However, in this case, the Court continues to focus on whether the detention was proper, and not on the incidental questioning that may or may not be related to the initial reason for the stop. See United States v. Stewart, 473 F.3d 1256 (10th Cir. 2007); United States v. Alcaraz-Arellano, 441 F.3d 1252 (10th Cir. 2006). In those two cases, the court ruled that questioning that was unrelated to the purpose of the stop was proper because it happened during the time that the officer was waiting for computer checks and it did not appreciably extend the length of the detention. Following that logic, Valenzuela claimed that an officer can ask unrelated questions only while the officer wrote a citation, awaited computer checks from dispatch, or while actively engaged in some other investigative action that was directly related to the purpose of the initial stop. Valenzuela argued that the officer immediately moved away from his initial purpose (investigating the weaving across the lane divider) and launched into a more general criminal inquiry. The court ruled that the previous cases should not be so narrowly interpreted. "Our cases do not focus on the order of events. Rather, our cases focus on the reasonableness of the traffic stop in light of both the length of the detention and the manner in which it was carried out." Because the officer’s questions lasted only a few seconds, they did not “appreciably lengthen the duration of the stop.”

This case, and many others across the United States, emphasize that the nature of the questioning during a traffic stop or an investigative detention is not the critical issue. The question is whether the scope and length of the detention was justified. Unrelated questions may be asked while waiting for computer checks, writing a citation, or in a very brief moment that does not appreciably extend the length of the detention. Note that the court acknowledged that its prior rulings that an officer’s retention of driver license and other documents is significant in evaluation the scope of a detention. "These cases simply stand for the proposition that during a ''routine traffic stop, an officer''s retention of a defendant''s documents is significant because it indicates that the defendant, as a general rule, did not reasonably feel free to terminate the encounter and, therefore, the government cannot rely on the defendant''s consent to justify further detention, questioning, or a search.'' " United States v. Guerrero-Espinoza, 462 F.3d 1302 (10th Cir. 2006). Bottom line: Talk nice, and ask about weapons, alcohol, drug, etc., while otherwise investigating the reason for the stop, and/or in a brief moment, and/or when such questions are based on reasonable suspicion. United States v. Valenzuela, 494 F.3d 886 (10th Cir. 2007).

10. Don't spit on the sidewalk!

Cabral worked at the home of a family that had a mentally challenged adult daughter. When the daughter became pregnant, family members suspected Cabral based on the daughter’s statements and the time period that he worked at the house. A number of suspects, including Cabral, were asked to voluntarily submit to DNA testing. Cabral refused. The family hired an off-duty officer to investigate Cabral. The investigator arranged for Cabral to go to the home of a private investigator under the pretense of hiring Cabral for plumbing labor. Once there, the investigator saw Cabral spit on the sidewalk. The investigator collected the saliva. DNA collected from the saliva helped convict Cabral of rape of the mentally challenged woman.

Cabral appealed, claiming an expectation of privacy in the expectoration of saliva. He said that his refusal to voluntarily provide a spit sample showed that he intended to retain his privacy interest in his saliva. Cabral should have listened to Dr. Samuel Crumbine, author of the “don’t spit on the sidewalk” public health campaign to eliminate tuberculosis. The court ruled that Cabral had abandoned his expectorant on the sidewalk. If he had shown some intention to retrieve the spit, he would have retained an expectation of privacy in it. Commonwealth v. Cabral, 866 N.E.2d 429 (Mass. App. 2007).

About the author

Ken Wallentine is Vice President and Senior Legal Advisor of Lexipol LLC (www.Lexipol.com), the nation’s leading provider of risk management policies and resources for public safety agencies. He is a retired chief and former prosecutor with over three decades of public service.